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The Equal Employment Opportunity Commission plans to sue Western Energy Services of Durango in federal court for age discrimination. The EEOC’s Complaint alleges that WESD failed to hire two electricians, 72 and 61 years of age, for electrical line work and to lay fiber-optic cable. The company allegedly wasn’t sure if the electricians could keep up with the work.

The EEOC is mostly known as the agency reviewing discrimination charges filed by individuals, but many do not know that the EEOC also has an enforcement arm and can prosecute its own cases. Even more importantly, while individuals must file their charges within 300 days in Colorado, the EEOC does not have to adhere to statutes of limitations and could choose to prosecute even an old charge.

What does it mean to be sued by EEOC? It means that the full power and resources of the federal government are employed in prosecuting a lawsuit. The EEOC will demand to see a wide variety of documents and interview anyone it deems relevant. The EEOC could examine a company’s servers, backup devices, laptops, cell phones, or anything else it could think of. Defending a suit against the federal government could consume a lot of company resources and bring a lot of bad publicity.

What is the best way to avoid being sued for discrimination? A company with clearly defined and consistently applied policies stands a much better chance of defending against a discrimination charge or even avoiding a charge in the first place. Companies also need to communicate clearly their policies and diligently enforce them, punishing the violators no matter who they are. Periodic training of line employees and managers also goes a long way to protect a company from liability for discrimination. Finally, documentation is key. If an employee is performing badly and needs to be fired, an employer needs to create a good record showing that the employee was indeed fired for performance reasons, and not for discriminatory reasons.

I have not seen the EEOC’s complaint against Western Energy Services of Durango, but it is a bad idea to tell prospective employees that a company isn’t sure whether an older applicant can keep up with the work. The better course would have been to state the exact physical requirements of the job and then ask job applicants if they can comply with all the job requirements. (Be careful here: if an employee meets a disability requirement under Americans with Disabilities Act, an employer may have to accommodate that employee.) It is a fairer and more efficient way, and it could have saved WESD a lawsuit and bad publicity.

In my next few blog posts, I will discuss various employment situations that companies experience and suggest ways in which a company could protect itself from discrimination charge. Comments and questions are welcome.

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Marianna Moss litigated at top firms in Denver, Milwaukee, and New York. She was a law clerk to a federal judge, after graduating Fordham Law School with multiple honors: top 5%, Order of the Coif, magna cum laude, and Fordham Law Review. Marianna equally enjoys helping her clients navigate difficult situations and, when necessary, advocating aggressively for them in Court. She has experience in all areas of litigation, especially employment, family, criminal, and general civil litigation. Marianna also provides non-litigation employment law services to businesses, from employee/manager trainings to advising on difficult employee/employer situations such as terminations, discipline, employee complaint handling, and noncompete agreements. You can contact Marianna at: